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Posted on July 1, 2009 by Troy Rosasco
How many times has one of your clients told you the IME or FCE physically hurt them during the course of a so called "independent medical exam" or "functional capacity exam"? What if the injury is permanent? Can they sue the IME doctor or physical therapist for medical malpractice?
According to a sharply divided NY Court of Appeals, the answer is "Yes". On June 24, 2009, the Court in Bazakos v. Lewis, 209 NY Slip Op 05199, the majority ruled that the claim of the plaintiff was that the doctor “breached his duty "to perform the examination in a manner not to cause physical harm to the examine." and found a "limited doctor-patient relationship" between the examiner and the claimant.
New Chief Judge Jonathan Lippman was almost apoplectic in a strongly worded dissent. The dissent argued that there was no medical treatment provided by the defendant because none was intended nor was any provided. The examination was a “disclosure device in litigation” and that the benefit was not for the plaintiff but in fact for the defendant in the underlying personal injury action. They added that the conduct of the defendant “during his examination … is not amenable to [a] description of medical malpractice within the meaning of CPLR §214-a.” Unfortunately, Judge Lipman forgets that "benefit for the defendant" ended up seriously inuring the claimant.
At the end of the day, what does this decision portend for the future of IME's in workers' comp and disability claims? First, their typical boilerplate statement at the end of their reports saying that the exam was performed, but their was no doctor /patient relationship, is now worthless. Second, far fewer IME's will lay a hand on injured workers during an IME absent a full indemnification agreement from the insurance carrier. Many others will quit the IME business in NY all together. Third, there is no reason this decision should not apply also to physical therapists who routinely do the more intrusive (and often unsafe) Functional Capacity Examinations (FCE) in long term disability claims (our law firm does not allow our clients to attend FCE exams). Finally, IME and PT medical malpractice rates will likely rise in New York given this new extension of liability.
Given the scandalous expose on workers' compensation IME fraud in the NY Times recently, this decision will hopefully curb some IME abuse. Hit the hacks where it hurts!
Posted on April 23, 2009 by Troy Rosasco
I will be speaking at the NOSSCR Disability Attorney Conference on May 13, 2009 in Washington, DC on the topic of: Winning Long Term Disability Claims at the Initial Level. As those of you who read this blog regularly know, I am a big ( must do, mandatory, stupid if you don't) proponent of at least consulting with a long term disability lawyer prior to filing for LTD on your own. The deceptively simple process is a minefield for the already disabled novice, and proceeding without at least some legal advice might jeopardize your economic security.
A simple one hour consultation with a long term disability attorney (either in the office or by phone) can teach you how to avoid the top five deadly mistakes which will allow the disability insurance company to deny you claim the first time around. I file long term disability denial appeals every day. These appeals can be costly and take months to resolve, all while you are struggling to pay the mortgage and your children's college tuition. You do not want to appeal a claim you could have won with the right assistance during the initial application level. Below is an a description of my presentation to the Social Security disability lawyers in attendance:
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There was once a time when many of us told clients to apply on their own for SSDI, and call us only if denied. Today, many of us help our clients with the initial SSDI applications stage. Even more so than with SSDI claimants, you should be helping your clients strategize and prepare a bullet-proof application in the adversarial arena of ERISA long term disability claims. This session will explore ways to overcome and avoid the inherent traps and pitfalls used by long term disability insurers to deny claims at the initial application level, thereby preventing costly and time-consuming appeals for claimants.
NOSSCR is the premier disability lawyer association in the country with over 3000 members. It has been an honor to be a member of their Board of Directors representing the New York and Connecticut area for the last three years. More than 1000 disability claim advocates are expected at the upcoming Washington, DC conference. Hopefully, many will attend my lecture to refine their advocacy skills when it comes to long term disability claims. Hope to see you there!
Posted on January 20, 2009 by Troy Rosasco
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First and foremost, congratulations to our new President - Barack Obama. His historic election will forever change the way opportunity and entitlement are viewed in the United States. He has tremendous challenges before him, but with our support and shared sacrifice, perhaps we can right this dangerously leaky ship we call America. Godspeed, Mr. President.
In the midst of this country's many problems, and on Inauguration Day especially, perhaps it seems a bit parochial to ask the new President to consider fixing the Employee Retirement and Income Security Act (ERISA). However, since the stated goal of the New York Disability Law Blog is to provide "information, help and support" for disabled workers, and given that ERISA often times provides more security to "employers" than "employees", causing untold human suffering and economic despair, I will not apologize for focusing this one little post on the plight of the disabled. After all, if you look at the amount of "pork" already stuffed into the current economic stimulus bill, you will clearly see that less important narrow interests are already swarming like vultures around Washington. And it is highly unlikely that CNN will pick this post up today.
Therefore, I implore the new President to ask but one aide to investigate the wholesale problems with ERISA that force so many with disability claims into bankruptcy. Long before the mortgage meltdown, disability claim lawyers like myself saw families consistently go down the economic drain while fighting for their disability benefits under the "employee unfriendly" ERISA. Let us, with the hope inspired by our new President, resolve to fix ERISA disability claims law in the next four years so that it actually does what it was intended to do - protect employees!
Posted on January 8, 2009 by Troy Rosasco
Michael Yoeli, one of the most experienced long term disability lawyers in the legal community, has joined Turley Redmond and Rosasco as 'Of Counsel". After a distinguished career on the defense side of the long term disability bar, Mike has been representing individuals and policyholders solely since 1998 and has used his prior experience and contacts to obtain several million dollar settlements for claimants against long term disability insurers. Says Senior Partner Troy Rosasco:
With the addition of Michael Yoeli as of counsel to our firm, Turley Redmond & Rosasco is able to offer our clients a unique level of representation in the areas of individual and group disability claims and litigation. For ten years, Michael was a partner in a leading firm representing many of the prominent disability insurers in their New York litigation. In representing these companies in the trial courts, Appellate Divisions and the New York State Court of Appeals, Michael developed an unparalleled level of expertise and experience in both disability insurance law and in how disability insurers operate. In 1998, Michael decided to put his knowledge to work exclusively for the benefit of policyholders. In the past ten years, he has represented numerous disabled persons. Utilizing the intimate knowledge he gained in representing insurers, he has been able to achieve impressive results for his clients, including several seven figure settlements, often without the need for prolonged and expensive litigation. We are thrilled to now be able to offer Michael's outstanding skills to our clients.
The last point cannot be emphasized enough. Due to his well established reputation with insurance companies, Michael can often obtain similar benefit results without the need for prolonged and costly litigation. Click here for ERISA and individual policyholder long term disability lawyer Michael Yoeli's contact information, and join us in welcoming him to the Turley, Redmond and Rosasco team.
Posted on January 1, 2009 by Troy Rosasco
Actually, the scathing Second Circuit decision in McCauley v. First Unum Life Ins. Co., 2008 U.S. App. LEXIS 26094 (2nd Cir., Dec. 24, 2008) came down this past Christmas Eve. But why quibble with form over substance when heralding this ground-breaking, pro-claimant decision interpreting the Supreme Court's recent decision in MetLife v. Glenn. McCauley, if followed by other circuits, has the potential to impact all claimant's with ERISA long term disability denials throughout the country. If you don't think Unum was "taken behind the barn", just read this from the Court in McCauley:
"First Unum is no stranger to the courts, where its conduct has drawn biting criticism from judges. A district court in Massachusetts wrote that “an examination of cases involving First Unum . . . reveals a disturbing pattern of erroneous and arbitrary benefits denials, bad faith contract misinterpretations, and other unscrupulous tactics.” Radford Trust v. First Unum Life Ins. Co., 321 F. Supp. 2d 226, 247 (D. Mass. 2004), rev’d on other grounds, 491 F.3d 21, 25 (1st Cir. 2007).
That court listed more than thirty cases in which First Unum’s denials were found to be unlawful, including one decision in which First Unum’s behavior was “culpably abusive.” Id. at 247 n.20. Also, First Unum’s unscrupulous tactics have been the subject of news pieces on “60 Minutes” and “Dateline,” that included harsh words for the company. Id. at 248-49. First Unum has fared no better in legal academia. See John H. Langbein, Trust Law as Regulatory Law: The Unum/Provident Scandal and Judicial Review of Benefit Denials Under ERISA, 101 Nw. U. L. Rev. 1315 (2007). In light of First Unum’s well-documented history of abusive tactics, and in the absence of any argument by First Unum showing that it has changed its internal procedures in response, we follow the Supreme Court’s instruction and emphasize this factor here.
Accordingly, we find First Unum’s history of deception and abusive tactics to be additional evidence that it was influenced by its conflict of interest as both plan administrator and payor in denying McCauley’s claim for benefits." - Ouch!
Much like the recent ERISA disability claim we won on appeal for a trial attorney with MS who was turned down by his own employer, the infamous Met Life, Mr. McCauley was a tax attorney with an unquestionable disability - advanced colon cancer with the after effects of surgery and treatment. He originally applied for and was denied disability benefits in 1996, and the fact that he lived through the glacial administrative and legal process of ERISA claims is nothing short of a miracle, or perhaps the will of a determined man who had been wronged.
Despite the inhumanity of Unum's actions in this case, perhaps they have been unfairly singled out. As an industry, there are very few long term disability insurers who don't use ERISA as a shield against unfair, and often times shocking, disability claim denials. Cigna's unscrupulous disability claim denial tactics were the subject of a recent series of stories on Good Morning America. As Professor Langbein so acutely observed in his article on the Unum Provident scandal cited by the Courts in both Glenn and McCauley:
"Cases of abusive benefit denials involving other disability insurers abound. Unum turns out to have been a clumsy villain, but in the hands of subtler operators such misbehavior is much harder to detect.'' 101 Nw.U.L.Rev. at 1321.
With new discovery opportunities envisioned by both Glenn and McCauley, it will be our job, as claimant ERISA long term disability attorneys, to expose the "subtler operators".
Posted on December 29, 2008 by Troy Rosasco
The Lexis Nexis Workers’ Compensation Law Center Powered by Larson’s recently announced the 2008 honorees for the LexisNexis Top 25 Blogs for Workers’ Compensation.
The New York Disability Law Blog, published by Turley, Redmond & Rosasco, LLP, was selected as a 2008 honoree. The New York Workers' Compensation Alliance Blog, with which we are affiliated, was also honored in the Top 25.
“These blogsites contain some of the best writing out there on workers’ compensation and workplace issues in general,” says the LexisNexis Workers’ Compensation Law Center. “They contain a wealth of information for the workers’ compensation community with timely news items, practical information, expert analysis, tips, frequent postings, and helpful links to other sites. These blogsites also show us how workplace issues interact with politics and culture. Moreover, they demonstrate how bloggers can impact the world of workers’ compensation and workplace issues.”
We are deeply honored by the recognition of LexisNexis, the pre-eminent legal publisher in the United States. When we started the then named Disabled Worker Law Blog in March 2005 as a helpful information portal for those with workers' compensation and long term disability claims, we never could have imagined the positive impact it would have on the lives of those fighting either insurance companies or the government for the benefits they deserve. Due to the enormous amount of time blogging requires from already over-worked lawyers, many legal blogs die an unnoticed death a few months after launching. Thanks to all our loyal readers and subscibers for making all our hard work worthwhile.
Much thanks goes to Kevin O'Keefe of Lexblog, who not only set up this blog, but was always there for encouragement and technical expertise. We recently lectured together at the Association of the Bar of the City of New York about "Blogging for Lawyers". Kevin and his Real Lawyers Have Blogs site was recently honored by American Bar Association as one of the Top 100 Legal Blogs in the country for 2008. Although the ABA labled him a blog "evangelist", I prefer to call him a good freind. Thanks Kev.
See you all in the blogosphere next year. Happy New Year to all!
-Troy
Posted on December 23, 2008 by Troy Rosasco
At this festive time of year, when so many of us are struggling in economic despair, let us not forget all that we still have. In the spirit of the Christmas season, let us try to put aside our worries, if only for one day, and rejoice for the things that matter most - the happiness and health of our families.
For the those among us who are not working due to accidents or disease, may 2009 bring you a return to work and good health. The attorneys at Turley, Redmond & Rosasco have dedicated our professional lives to representing injured and disabled claimants with ERISA and private long term disability claims, Social Security disability claims and workers' compensation claims. May 2009 bring happier, healthier and more prosperous days to the clients we serve. Merry Christmas and Happy Holidays!
Posted on November 26, 2008 by Troy Rosasco
The Social Security Administration has recently developed a new procedure for handling disability claims from claimants with the most severe and disabling conditions. The new procedure allows decision-making on these claims to be "fast-tracked" (not necessarily approved) given the current Social Security backlog. This is a welcome change for Social Security Disability attorneys who often struggle to explain to our very sick clients why Social Security can't make a quick decision when the disability is "cut and dry". The following is Social Security's list of 50 disabilities that they will consider for a "compassionate allowance":
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1
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Acute Leukemia
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2
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Adrenal Cancer - with distant metastases or inoperable, unresectable or recurrent
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3
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Alexander Disease (ALX) - Neonatal and Infantile
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4
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Amyotrophic Lateral Sclerosis (ALS)
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5
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Anaplastic Adrenal Cancer - with distant metastases or inoperable, unresectable or recurrent
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6
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Astrocytoma - Grade III and IV
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7
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Bladder Cancer - with distant metastases or inoperable or unresectable
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8
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Bone Cancer - with distant metastases or inoperable or unresectable
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9
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Breast Cancer - with distant metastases or inoperable or unresectable
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10
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Canavan Disease (CD)
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11
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Cerebro Oculo Facio Skeletal (COFS) Syndrome
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12
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Chronic Myelogenous Leukemia (CML) - Blast Phase
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13
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Creutzfeldt-Jakob Disease (CJD) - Adult
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14
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Ependymoblastoma (Child Brain Tumor)
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15
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Esophageal Cancer
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16
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Farber's Disease (FD) - Infantile
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17
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Friedreichs Ataxia (FRDA)
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18
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Frontotemporal Dementia (FTD), Picks Disease -Type A - Adult
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19
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Gallbladder Cancer
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20
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Gaucher Disease (GD) - Type 2
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21
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Glioblastoma Multiforme (Brain Tumor)
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22
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Head and Neck Cancers - with distant metastasis or inoperable or uresectable
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23
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Infantile Neuroaxonal Dystrophy (INAD)
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24
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Inflammatory Breast Cancer (IBC)
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25
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Kidney Cancer - inoperable or unresectable
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26
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Krabbe Disease (KD) - Infantile
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27
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Large Intestine Cancer - with distant metastasis or inoperable, unresectable or recurrent
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28
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Lesch-Nyhan Syndrome (LNS)
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29
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Liver Cancer
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30
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Mantle Cell Lymphoma (MCL)
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31
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Metachromatic Leukodystrophy (MLD) - Late Infantile
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32
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Niemann-Pick Disease (NPD) - Type A
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33
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Non-Small Cell Lung Cancer - with metastases to or beyond the hilar nodes or inoperable, unresectable or recurrent
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34
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Ornithine Transcarbamylase (OTC) Deficiency
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35
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Osteogenesis Imperfecta (OI) - Type II
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36
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Ovarian Cancer - with distant metastases or inoperable or unresectable
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37
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Pancreatic Cancer
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38
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Peritoneal Mesothelioma
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39
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Pleural Mesothelioma
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40
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Pompe Disease - Infantile
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41
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Rett (RTT) Syndrome
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42
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Salivary Tumors
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43
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Sandhoff Disease
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44
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Small Cell Cancer (of the Large Intestine, Ovary, Prostate, or Uterus)
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45
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Small Cell Lung Cancer
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46
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Small Intestine Cancer - with distant metastases or inoperable, unresectable or recurrent
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47
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Spinal Muscular Atrophy (SMA) - Types 0 And 1
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48
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Stomach Cancer - with distant metastases or inoperable, unresectable or recurrent
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49
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Thyroid Cancer
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50
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Ureter Cancer - with distant metastases or inoperable, unresectable or recurrent
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Given this time of Thanksgiving, we are thankful to Social Security for developing this new program to help the sickest claimants. Thank you also to Geri Kahn, Esq. at the California Social Security Lawyer Blog for first posting on this subject. She is an asset to the disability law blogging community and I read her blog regularly.
And of course, Happy Thanksgiving to all the readers of the New York Disability Law Blog!
Posted on October 24, 2008 by Troy Rosasco
Today's NY Times reports that a federal jury in Boston has found Unum, the nation's largest long term disability (LTD) insurer, committed fraud by requiring it's customers to apply for Social Security disability (SSD) benefits, even though they knew they were not eligible.
In addition to Unum, another large disability insurer, CIGNA, is facing a similar lawsuit which has been filed under the federal "whistle-blower" False Claims Act alleging that the US taxpayer is paying to process these fraudulent claims.
In my opinion, this self-dealing referral by long term disability companies has been an ongoing problem for years that I have reported on this blog before. A "cottage industry" of Social Security representatives like Allsup and Advantage 2000, whose business' are supported largely by referrals from disability insurance companies like Unum, CIGNA and Hartford, make millions of dollars from relationships with companies like Unum.
The self-interested system works like this: Most employees who pay for long term disability insurance through their employers are surprised to find out that if they become disabled and collect benefits from companies like Unum or Cigna, they are required to also apply for Social Security disability benefits under the threat that their LTD payments will be stopped or reduced. Why do the LTD companies require them to apply for Social Security disability?
Let's use the following example: Mary Smith is a secretary with a young child earning $32,000/yr. She pays $30 per week out of her paycheck for her long term disability protection. She stops work due a diagnosis of breast cancer requiring surgery, chemo-therapy and radiation. The cancer was caught early and the eventual prognosis is good. Her surgeon tells her she should be back to work in 6-9 months. She applies for long term disability through her company's long term disability insurer, such as Unum, Cigna or Hartford. She is granted long term disability benefits at a rate of 60% or her monthly gross income. In Mary's case, this equals $1600 per month.
After being granted LTD benefits, the insurer refers her to an outside Social Security disability representative with whom they have a financial relationship, such as Allsup or Advantage 2000 (aka Advantage2K). These companies encourage the claimant to file for Social Security disability for the simple reason that if they are successful, the LTD carrier will get most of its money back from the claimant's Social Security award. Unbeknownst to most employees when they sign up for long term disability through their employer, any money the LTD insured pays the employee is "offset" by whatever amount the employee or her dependents receive from Social Security.
In Mary's case, her family Social Security benefits equal $1500 per month. If she is awarded Social Security, Unum will only have to pay her a whopping $100 per month (the original $1600/mo. LTD payment less the $1500/mo Social Security payment). This $100 per month disability protection is what Mary gets for her $30 per week salary deduction for LTD coverage!!
Is this a scam? When I explain this to my clients on almost a daily basis, they are legitimately angry at their employers for selling them LTD coverage which in many cases is minimal at best. They never would have signed up for and paid for LTD if they knew the protection was so lame. This is a rampant problem among American employers, and should be addressed by an wide ranging educational program by organizations such as the Society for Human Resource Management.
As bad as this system is, the Boston jury actually found Unum guilty of a different type of fraud. In Mary's case, her doctors believe she will be back to work within nine (9) months. In order to obtain Social Security disability benefits, the claimant must be out of work a minimum of twelve (12) months. She simply doesn't qualify. Yet it is not uncommon for Unum and other disability insurers to encourage Mary to apply for a benefit they do not qualify for, in the hopes of recouping a large portion of their prior long term disability claim payments. This was the essence of the fraud finding against Unum, but as explained above, it exposes a much larger problem of LTD insurers referring claimant's to Social Security representation companies with whom they have a financial interest.
So what is the fix? Congress should pass a law preventing long term disability insurers from referring claimants to their hand picked representatives, which really represent insurers more than the actual individual. I have had to take over SSD cases from representative firms who have clearly acted against the best interest of the client in order to benefit the LTD carrier. My Advice - hire a local Social Security disability attorney who specializes in Social Security law and has no connection to any LTD insurance company. He or she will have to act in your best interests as required by the Code of Ethics. Until this mess is cleaned up, disabled buyers should beware.
Posted on October 23, 2008 by Troy Rosasco
I had a great time at the NOSSCR Social Security Disability law conference in Los Angeles last week. I actually had a chance to chat with Social Security Commissioner Michael Astrue down at the pool. This is a very bright guy, and in my opinion he is moving the agency in the right direction. His Deputy Commissioner Linda deSoto and Chief Administrative Law Judge Frank Cristaudo were also quite impressive. It was also great to break bread at an old Italian restaurant named Matteos with my good friend Larry Wittenburg, probably the best Social Security attorney in North Carolina.
As a Member of the NOSSCR Board of Directors and Second Circuit representative, I hosted our Second Circuit Round-table discussions on Wednesday night which are always interesting. The rest of the seminars dealt with how to win Social Security disability claims involving many types of disabilities, including heart disease, cancer, diabetes, HIV/AIDS, depression, MS (multiple sclerosis), lupus, fibromyalgia, herniated disks, bipolar disorder, arthritis, seizure disorders, lung disease, RSD (reflex sympathetic dystrophy), COPD, CRPS (Chronic regional pain syndrome), anxiety and PTSD (post-traumatic stress disorder).
Our office sees these and other unique diseases every week. We probably have a higher incidence of PTSD here in New York due to the ongoing trauma of 9/11 workers' compensation claims. The next national Social Security disability lawyer conference will be next Spring in Washington, DC, where we plan to lobby Congress to improve the Social Security Disability system for disabled clients.
Posted on October 10, 2008 by Troy Rosasco
According to an article in Newsday today regarding the LIRR disability retirement scandal, Attorney General Andrew Cuomo has now issued subpoenas to four long term disability insurance companies and five Long Island doctors who predominately examined LIRR workers. This is in the wake of recent reports indicating that a whopping 98% of Long Island Railroad workers retire with disability pensions. The fact that white collar LIRR employees were getting occupational disability pensions tells you how broken this system really is.
The long term disability insurance companies have been identified by the New York Times in their ongoing railroad disability scandal series as First Unum Life Insurance Company, AFLAC, Transamerica Financial Life Insurance Company and CUNA Mutual. It is possible that these disability insurance companies may have been victims of the broken Railroad Retirement Board disability decisions if they were required to pay out on policies if the LIRR employee was granted a disability retirement pension. It is not often on this blog that you will see me refer to long term disability insurers as potential victims, but it seems they might have been in this case.
As a disability lawyer for almost 20 years on Long Island, I am proud to say that I have never represented any LIRR employee in a Railroad Retirement Board disability claim. It appears they didn't need me - all they had to do to get disability benefits was to raise their hand! Unfortunately, abuses like this tarnish those LIRR employees with legitimate disability claims, of which I am sure there are many.
I predict this story is only going to get bigger, and will eventually lead to major reform of the Long Island Rail Road workers disability system. One simple solution would be to simply abolish the Railroad Retirement Board, and to include LIRR employees in the Social Security Disability system, which generally requires the claimant to be "disabled from all work", not just their "regular occupation". This would also help LIRR workers since Social Security disability taxes withheld from their paycheck are far less than the railroad system taxes they now pay. Perhaps Senators Schumer and Clinton can propose this easy fix. However this broken system is reformed, the days of automatic disability pensions for LIRR workers are over. Now they will have to be truly disabled.
Posted on September 11, 2008 by Troy Rosasco
As the New York Disability Law Blog has done since its inception, today we pay respects, on the seventh anniversary of 9/11, to the families of all those killed or injured in this devastating terrorist attack. I truly hope one of our presidential candidates finally chases Osama Bin Laden to "the gates of hell". He has gone unpunished for far too long.
That being said, sadly, workers compensation lawyers and disability lawyers like myself are still litigating claims arising from 9/11. Shockingly, and with far too little publicity, insurance companies are still fighting these claims, causing further anguish and grief to the victims and their families.
Our firm recently successfully concluded two contested 9/11 claims under the new 9/11 First Responder law, passed in October 2007, which uniquely provided for 75% of a claimant's lost wages for life. Our clients were EMT's for voluntary hospitals in New York City suffering from 9/11 induced post-traumatic stress disorder (PTSD). Although the insurance companies fought these claims tooth and nail due to the high financial exposure, we prevailed for these long overdue victims.
The New York State Insurance Fund (NYSIF), the semi-public insurance company, recently fought a claim by a 9/11 victim by advancing the novel theory that his injuries were related to his service in Vietnam - despite the claimant working successfully full-time for over 30 years prior to 9/11. After we obtained the client's VA medical records, we easily refuted the NYSIF's silly argument. The workers compensation law judge ruled in our client's favor earlier this week and he will receive workers' compensation case and medical benefits for life. The New York Workers' Compensation Board continues to do an admirable job protecting the rights of 9/11 claimants. In addition, the New York City Department of Health runs an excellent website on 9/11 related health problems.
Long Island's own Congressman Tim Bishop recently urged additional federal funding for 9/11 victims at Stony Brook University's World Trade Center Monitoring and Treatment Program. This excellent program is headed by Dr. Benjamin Luft and has been of great help to many of our clients. The program also operates in offices in Islandia and Nassau University Medical Center, with a new Hicksville office coming soon. The New York Disability Blog strongly urges Congress to fully fund this much needed program for 9/11 victims in Nassau and Suffolk.
It is clear that we will all be living with the painful legacy of 9/11 for at least another generation. Many more workers compensation, Social Security disability and long term disability claims are yet to be filed. May we all join together with compassion, empathy and financial support for every 9/11 victim.
Posted on July 31, 2008 by Troy Rosasco
Eliminating the backlog of Social Security Disability claims is a moral imperative, according to a recent report issued by SSA Commissioner Michael J. Astrue to Social Security lawyers throughout the country. We agree! Too many disabled Americans are suffering financially while they wait for a Social Security hearing.
The Commissioner has asked disability attorneys and great organizations such as NOSSCR to help in realizing this goal. We stand ready to assist as long as due process is protected. Click here for a summary of the Commissioner's report.
Posted on July 2, 2008 by Troy Rosasco
Good Morning America continues to report on the horrors that claimants experience fighting long term disability insurance companies throughout the country. The video in this report is a must see for all members of Congress, and should at least give other disabled claimants comfort in knowing they are not alone. Despite the positive Supreme Court ERISA ruling in Glenn v. MetLife last week, Congress still needs to address both the delays and the harassment claimants must go through to get the disability benefits they deserve.
The two breast cancer cases where the claimants were denied benefits are both heartbreaking and maddening. A young woman with breast cancer and children should not have to spend the last year of her life fighting a disability insurance claim. It is just plain cruel.
Thanks to my South Florida colleague, Alicia Paulino-Grisham, for her great work on bringing these injustices to the attention of ABC News and Congress. Last month I attended a disability insurance lawyer conference in Boston and had a chance to speak with Alicia and her partners. With fighters like Alicia on our side, at least claimants stand a chance against the likes of CIGNA, MetLife and The Hartford.
Posted on June 19, 2008 by Troy Rosasco
The decision all ERISA long term disability attorneys around the country have been waiting for, Metropolitan Life Insurance v. Glenn, 554 U.S. ____ (2008) , finally came down from the U.S. Supreme Court this morning . Click here for the full decision.
The issues in MetLife v Glenn were whether MetLife, as a plan administrator, had a "conflict of interest" by being both the decision-maker and payer of claims, and if a conflict existed, what "standard of judicial review" should be used by the courts when a beneficiary appeals a denial of ERISA long term disability benefits. The Court held:
Often the entity that administers the plan, such as an employer or an insurance company, both determines whether an employee is eligible for benefits and pays benefits out of its own pocket. We here decide that this dual role creates a conflict of interest; that a reviewing court should consider that conflict as a factor in determining whether the plan administrator has abused its discretion in denying benefits; and that the significance of the factor will depend upon the circumstances of the particular case. See Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989).
Many claimant ERISA long term disability lawyers had been hoping for a de novo standard or review when a conflict existed. The Court clearly rejected this standard in favor of a quite vague "factor test" in deciding whether a plan administrator "abused its discretion" based upon the facts of a particular case.
While better scholars than myself will surely be able to dissect and analyze this decision in more detail in the coming days and weeks, it seems clear that: 1) this is generally a good decision for ERISA long term disability claimants and 2) ERISA long term disability lawyers and courts will be struggling to apply the Supreme Court's intentionally vague "factor test" for years to come.
Posted on June 10, 2008 by Troy Rosasco
I'm off to Boston this week to
attend the premier LTD Litigation conference in the country. See the
conference schedule here for some of the cutting edge ERISA and medical issues we will be discussing. Some of the best
long term disability lawyers in the country will be speaking on trial techniques, mediation of claims and recent case law.
I can always learn more. It should be a winner!
Posted on June 2, 2008 by Troy Rosasco
I'm off to Miami Beach (yes - a conference in Miami in June!) tomorrow for the semi-annual NOSSCR Social Security Disability Law conference through Friday. In between my responsibilities representing the Second Circuit on the Board of Directors of NOSSCR, I plan to take advantage of some of the great seminars NOSSCR always offers. Every Social Security Disability attorney should try to attend this conference at least once a year to keep their knowledge and skills "cutting edge". In addition, it gives me a chance to talk with some of the real "thought leaders" in disability law.
Seminars this year include "Chronic Fatigue Syndrome - Unraveling the Mystery", "Psychiatric Testing for Mental Illness & Traumatic Brain Injury (TBI)", "Ethics and Professionalism" and the inter-relationship of Social Security disability claims with ERISA long term disability claims. It should be a great conference.
It will also give me a chance to have dinner with my dad, Ed Rosasco, who retired a few years ago as President & CEO of Mercy Hospital in Miami. He is now doing health care consulting and sits on the boards of several hospitals and charities in the South Florida area. I hope to see my colleagues from around the country at the conference - or at the pool!
Posted on April 8, 2008 by Troy Rosasco
There are literally thousands of former Nassau County workers who are currently receiving lifetime workers' compensation payments (pensions) for life due to on- the- job injuries. I know - I have represented a large number of these unfortunate individuals. These payments are overwhelmingly for workers who have been classified as having "permanent partial disabilities" and are destined to live the rest of their life in pain.
According to a Newsday article yesterday, Nassau County is now proposing a $55 million taxpayer funded bond to "sell" these claims to private insurers who would then try to convince the injured worker to settle the claim in a one-time "buy-out". Is this good for the injured former Nassau workers? For many of them, it is not a good deal at all unless they are paid "full value" for their settlement. It also may not be a good deal for the taxpayer. (See the excellent WorkersComp Insider post here) .
Our office recently negotiated a lump sum buy-out (often times called a Section 32 settlement) for a Nassau municipal worker for $650,000.00. We thought this was a fair settlement given that the worker was going to lose both weekly non-taxable cash benefits and medical care for the rest of his life. Unfortunately, you can bet that the insurance companies "bidding" for the Nassau County claims have no intention of paying fair settlement value to former Nassau employees.
The vast majority of lump sum buy-out offers are grossly unfair to the injured worker and are simply a device for insurance companies to dump claims and invest the excess profits. The claimant needs a skilled NY workers compensation lawyer to negotiate a fair settlement. So what is amount fair? First and foremost, for anyone who is likely to need major medical intervention in the near future, such as surgery, no amount of money may be the answer. Remember, once the injured worker accepts the cash buy-out, he must pay for future medical care, including surgery, on his own. Any settlement offer in a case like this would have to also "buy-out" the potential future cost of surgery, medications, physical therapy, etc.
Anyone considering a buy-out of a permanent partial disability claim should ask their workers compensation lawyer to do a "present value calculation" of what their future cash AND medical benefits are worth. This present value calculation, which is the standard for settling long term disability claims, can be drastically impacted by current interest rates. For instance, today I am using an interest rate tied to the ten year treasury bill rate (3.58% as of 4/08/08) to determine present value for the purposes of settling my cases. When interest rates go back up, present value settlement offers will go down, so historically, now is a good time to get maximum value when deciding to settle a New York workers' compensation claim. In addition, if you receive Social Security Disability in New York, you may need a Medicare Set-Aside agreement.
There are many present value calculators on the Internet which can help you determine a fair settlement proposal. As my third grade math teacher instructed, I like to show my client's the "work", not just the answer, which I do on a Microsoft Excel spreadsheet. Of course, settlement of any workers compensation claim is as much "art" as arithmetic, but the math is always the starting point.
It remains to be seen whether Nassau County dumps its old workers' compensation claims in the hands Warren Buffet and Berkshire Hathaway to settle with permanently disabled workers. If it does and you are an injured worker approached for a buy-out of your claim, ask a lot of questions of your Nassau workers compensation lawyer. You don't want to leave any money on the table, and Warren Buffet has enough money.
Posted on February 8, 2008 by Troy Rosasco
The New York Mercantile Exchange (NYMEX) is right around the corner from our Wall Street office. Last July, a very successful Commodity Broker called our office for legal representation in his appeal of a denial of his ERISA long term disability claim against The Guardian Insurance Company. His long term disability policy was supposed to pay him $10,000.00 per month. He been out of work for 14 months prior to coming to our office and The Guardian, like most LTD insurance companies, was dragging their feet.
After the client retained our office, we quickly realized that the "stated" reason for The Guardian denial was based on a incorrect analysis of his prior occupation. An accurate description of the "material and substantial duties" of a long term disability client's job is one of the most important, yet often overlooked, keys to winning individual disability income claims.
After obtaining the Guardian's entire claims folder (to which all claimant's are entitled under ERISA- see our Disability Law Library), we determined that The Guardian's own vocational expert had incorrectly defined his "occupation" as involving primarily "electronic trading". In fact, he was the classic, active "floor trader" you might envision on the floor of any financial exchange. We immediately retained a well known vocational expert to write a 12 page report rebutting Guardian's expert and detailing his actual job duties and work environment. Our expert even did a field visit to the Mercantile Exchange "trading pit" and interviewed our clients co-workers and boss. Finally, thinking outside the box and working together with our client, we obtained a key letter from a top Mercantile Exchange official backing up our occupational analysis.
After doing the necessary prep work and laying an unshakable foundation, we then wrote an extensive legal brief seeking a reversal of Guardian's initial long term disability denial. To Guardian's credit, their Appeal's Committee issued a stunningly quick reversal within two weeks. Our client's nearly 18 month odyssey without long term disability income was over. They immediately released a check to him for over $150,000 in retroactive benefits and he continues to collect his $10,000 per month benefit today. To avoid the stress of ongoing disability claim reviews in the future, we are now in the process of negotiating a complete "buy out" settlement of our client's long term disability claim.
The key to winning this long term disability claim was not just writing a legal appeal (which many lawyers can do), but was developing evidence for our client which gave the Guardian a rational basis to reverse their prior decision. Smart lawyers don't win appeals just by telling insurance companies "you are wrong, you made a mistake" (even when they did). After all, what human being wants to admit they were 'wrong". You must give them additional evidence, like we did in this case, to reconsider their original decision.
Posted on January 15, 2008 by Troy Rosasco
Last night the CBS Evening News with Katie Couric unveiled the first of two special reports on the Social Security Disability claim backlog. My friend and fellow Social Security Disability lawyer, John Hogan, was interviewed and spoke of the 2 1/2 year wait for a hearing in the Atlanta area! When you see the disabled claimant's profiled in this report, you will realize how cruel and unacceptable such waits are.
I suppose that we should be thankful that the hearing wait in the New York metropolitan region is only 18 months!??? But it is hard to feel this way when you see clients losing their homes while they wait for the disability benefits they paid for and deserve. Sadly, some of my clients have died before they get their hearings. Hopefully, Congress will listen to this report and fund Social Security properly so that future claims can be expedited. Catch Part 2 of the CBS special report tonight at 6:30 pm EST by clicking here. Thanks for your concern, Katie!
Posted on December 31, 2007 by Troy Rosasco
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Happy New Year to all the readers of the New York Disability Law Blog! Over the course of 2007, we are pleased to report that our firm has once again helped thousands of injured and disabled claimants successfully win the benefits they deserve.
Our blog has tried to provide timely and helpful information to all those struggling with a variety of disability claims, including long term disability insurance claims, Social Security disability claims, workers' compensation claims and VA disability claims. Since its inception in March 2005, our blog's readership has steadily grown and we have become a frequent resource to reporters and other media professionals on disability claim matters.
We look forward to another year of fighting the good fight for our clients and friends. We wish you and your families a healthy and happy 2008!
Posted on December 25, 2007 by Troy Rosasco
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"This boy is Ignorance. This girl is Want. Beware them both, and all of their degree, but most of all beware this boy..." - Charles Dickens, A Christmas Carol (1843).
At this festive time of year, when so many of us have more worldly goods than we truly need, let us not forget those among us who are not working due to accidents or disease. The attorneys at Turley, Redmond & Rosasco have dedicated our professional lives to to lifting up and providing for injured and disabled claimants with ERISA and private long term disability claims, Social Security disability claims and workers' compensation claims. May the year 2008 bring happier and healthier days to the clients we serve. Merry Christmas!
Posted on December 11, 2007 by Troy Rosasco
Yesterday's front cover of the NY Times had an article detailing the long delays in the Social Security Disability claim process. Much of the backlog is the result of Congress failing to adequately fund a Social Security disability claim system which is now facing more claims due to the aging of the "baby boomer" generation. Today, a rash of editorials skewering both President Bush and Congress for this preventable crisis hit the streets and the far reaches of the Internet. Something must be done - now!
Last week, I traveled to New Haven, Connecticut to handle a Social Security disability hearing for an emergency room physician stricken with chronic Lyme disease. The hearing before an Administrative Law Judge went well and we will win the case. However, the client had to wait over 18 months for her hearing before the judge. In this particular case, the wait did not have a dramatic financial impact on the doctor since she was already collecting benefits from her own private long term disability insurance policy through Northwestern Mutual Life.
But this is the exception, not the norm. Less than 20% of my clients have either employer sponsored group ERISA long-term disability plans or private individual disability income protection. Most of my clients, when faced with the long delays at Social Security disability, are facing either bankruptcy or foreclosure. As stated in the article, some die before their case is heard. I have one such client in the hospital now with stage 4 terminal cancer. In most cases, "justice delayed is justice denied". A judge has not even been assigned to the case yet. Thankfully, I was able to call in a few favors and have Social Security place this case on an expedited review.
The Social Security Administration recently proposed new rules to streamline the disability appeals process. Click here to see the new rules and submit your comments. Some of their ideas are good, others would harm disabled claimants even further. As a member of the NOSSCR Board of Directors, I can assure you we will be submitting detailed comments to both expedite claims while protecting fundamental fairness to disabled claimants.
Posted on October 29, 2007 by Troy Rosasco
Turley, Redmond & Rosasco founding partner William "Bill" Turley was endorsed today by Newsday as Smithtown's next representative in the Suffolk County Legislature. Bill, who has been practicing workers' compensation and disability claim law on Long Island for over 20 years, impressed the Newsday staff with his innovative ideas on clean energy and immigration.
- 13TH DISTRICT
North Smithtown, part of Huntington
Republican Lynn Nowick, 60, of St. James, is running for a fourth term. Her assiduous constituent services assure her popularity. But she has few constructive new ideas, especially regarding the 800-pound gorilla in her district: the fate of the former Kings Park Psychiatric Center.
On this vexing issue, her Democratic opponent, William Turley, 49, of Fort Salonga, agrees that the legislature has little influence beyond rhetorical support of a better proposal for the complex's use. But Turley, an attorney specializing in workers' compensation, brings a refreshing and progressive perspective that differs sharply with Nowick's in every other respect. He favors hiring halls for migrant workers, wants stricter penalties for sex offenders but is concerned about the constitutionality of residential restrictions, and would push for alternative energy policies in the county to offset dependence on foreign oil. We endorse Turley.
For many disabled clients on Long Island and New York City, Bill has been a steady hand guiding them through the disability claim maze. Good luck Bill on November 6th!
Posted on October 16, 2007 by Troy Rosasco
I'm off to St. Louis to attend the
NOSSCR conference for the next few days. In between my
Board of Directors meetings, I'll be sharpening my
Social Security disability lawyer skills at some of the
great seminars NOSSCR always offers.
See you on the blog next week.
Posted on October 10, 2007 by Troy Rosasco
Thanks to Jane Reilly and all those at the Long Island, New York Chapter of the National Multiple Sclerosis Society for inviting me to participate at their annual free "Meet the Attorney" night last week at the Melville headquarters. I had a private meeting with a lovely woman struggling with MS to discuss both her ERISA long term disability claim with Unum, and her pending Social Security Disability claim.
I advised her NOT to use the "free" representation from GENEX Services to assist her with her Social Security Disability claim, as GENEX operates solely for the benefit of Unum, and therefore has a major conflict of interest similar to Allsup and Advantage 2000. (See my previous blog posts about Allsup and Advantage 2000 for the full story). GENEX is no better! Did you know that GENEX Services was a wholly owned subsidiary of Unum until just recently, and that Unum remains their major client. This tells you everything you need to know.
I told this grateful woman she would be far better off hiring a private attorney to represent her in her Social Security Disability claim, regardless of who the particular attorney is. Attorneys have an ethical obligation to guard the client's secrets and confidences, as opposed to GENEX which is obligated to share personal information with Unum since Unum is paying their bill. Money talks!
In other MS news, my partner Chris Redmond participated in a Bike-A-Thon recently to raise funds for multiple sclerosis research. Finally, Chris' Uncle Ed Keegan, age 69 and still a top New York Life Insurance Agent, made headlines in Newsday by walking across Long Island in a T-shirt that read "Who Gives 100%?" to raise funds for MS. Ed's daughter has MS. Ed Keegan gives 100% ! Thanks Ed!
Posted on September 24, 2007 by Troy Rosasco
It's all in your head! You do not have "objective medical evidence" of a disabling condition! Your symptoms are "self reported" and not supported by "testing"! Any chronic fatigue syndrome (CFS) sufferer whose disability claim has been denied by either Social Security or an LTD insurance company has seen these infuriating phrases before. As reported by Dr. Sanjay Gupta of CNN last week, a new study and test for CFS may put an end to this injustice.
Despite ample clinical evidence of disability from treating physicians, many ME/CFS and FM patients and couldn't get past "objective evidence" roadblock put up by ERISA disability plan administrators. Social Security finally caved a few years ago by issuing a ruling telling Administrative Law Judge's that Chronic Fatigue Syndrome claimants did not need objective medical evidence to prove that they were disabled. Like other auto-immune disorders such as fibromyalgia (FM), lupus and sarcoidosis, CFS is primarily diagnosed based upon the patient's reported symptoms.
The new study involved stomach biopsies done through endoscopy which revealed a strong association between enterovirus and CFS. While a confirmatory stomach biopsy might not change the course of treatment for any chronic fatigue syndrome patient, it could be the evidence that long term disability lawyers need to obtain benefits for clients from disability insurance companies. Gotcha Unum and MetLife! For any of my disability insurance claim clients fighting a CFS case, I will be sure to tell them to discuss an upper GI endoscopy with their treating physician. It could mean the difference between winning and losing your long term disability claim.
Posted on August 31, 2007 by Troy Rosasco
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To all workers who toil each day to make America great, the the attorneys and staff at Turley, Redmond & Rosasco wish you a much deserved and restful Labor Day. Enjoy! See you next week.
Posted on August 24, 2007 by Troy Rosasco
Recently, a group of some of New York's top long term disability insurance lawyers and advocates gathered in Manhattan to sign an important document for the benefit of all employees who are covered for LTD benefits through an ERISA plan sponsored by their employer. This letter to the NY Insurance Superintendent Eric Dinallo requested that unfair "discretionary clauses" in insurance contracts be banned in New York, as they have been recently in New Jersey and California.
As previously reported in this blog, this follows the prior attempts to ban discretionary clauses under the Pataki administration. To date, it is unknown what the Spitzer administration's position will be on this issue. However, it is hoped that the Superintendent Dinallo will join other progressive states in leveling the playing field for disablity claimants and stop unfair insurance company practices which deny legitimate long term disability claims. We will keep you updated when we receive a response from Superintendent Dinallo.
Posted on August 9, 2007 by Troy Rosasco
Did you know that over 60% of all initial Social Security Disability claims filed without a lawyer are denied? Did you know that the Social Security Disability appeals process can now take up to two years? In New York, the current backlog of disability cases awaiting a hearing before an Administrative Law Judge is over 52,000 - one of the worst in the nation!
However, there are several things you can do to avoid this intimidating bottleneck:
- Have a heart-to-heart talk with your treating doctor. Ask him directly if he is willing to support your disability claim in writing. Without the proper medical evidence, no Social Security Disability lawyer can win your claim. Some physicians simply don't want to be bothered with Social Security paperwork. A few others have a "God complex" along the lines of "if I did surgery on you, you can't be disabled!". If your doctor is unwilling to support your case but you still believe you cannot work, ask you lawyer for the name of a credible doctor who can give you a second opinion. It could make the difference between bankruptcy or a steady stream of income for the rest of your life;
- Unfortunately, Social Security does not grant great weight to the reports of chiropractors for spinal disorders or social workers for mental disorders. If you are treating with these professionals, you may have to supplement your medical records with reports from orthopedists or neurologists for back and neck problems, or psychiatrists or psychologists for depression and other mental disorders. Speak to an experienced Social Security disability attorney who can help you select a doctor who understands the written proof necessary in disability claims;
- Don't minimize the actual physical demands of your job. If you are a secretary, but your job also requires you to lift boxes of copy paper to load the copy machine, you must write this in the "work history" portion of the application. Otherwise, the Administrative Law Judge who will hear your case might think that you lift nothing more than a telephone receiver all day. Failure to accurately describe the physical and mental demands of your occupation could be fatal to your case;
- Hire an experienced Social Security Disability attorney at the initial application stage. It does not cost any extra money to hire a lawyer early in the process! If you also have a long term disability claim, don't let the insurance company dictate who your Social Security representative will be. These "advocates" or "representatives" work for the insurance company, not you. And to boot, they charge the same fees as lawyers who are ethically bound to protect only your interests.
- Many believe wrongly that filing for Social Security is a simple process requiring the completion of a few forms. In reality, it is a confusing, long process governed by strict government regulations as the above statistics show. What you write in your initial application can come back to hurt you later at the almost inevitable hearing before a Judge. An experienced attorney who knows the local judges, unlike faceless representatives at large advocacy groups like Allsup or Advantage 2000 who work for long term disability insurance companies, can personally meet with you to map out a winning strategy;
Since most initial applications are denied, you will want to have an attorney by your side when you appear at a Hearing Before an Administrative Law Judge. At this hearing, your sworn testimony under oath will be tape recorded for potential review in a federal court. Remember - your Social Security claim is governed by federal case law and regulations. The lawyer you choose can make all the difference!
Posted on July 24, 2007 by Troy Rosasco
Turley, Redmond & Rosasco partner Chris Redmond has a long record of helping raise money to battle Multiple Sclerosis. This year, the firm was pleased to help fight Multiple Sclerosis by sponsoring an individual bike rider in his local MS Bike fundraiser on July 21st in Pennsylvania. Our law firm helped sponsor Chris Carson, brother of Linda Rosasco and brother-in-law of LTD Claim Division partner Troy Rosasco. Chris rode with the Peters & Wasilefski law firm team. So far, the team has raised over $1,800.00! Chris is one of those real good guys this world needs more of. Thanks Chris!
I just met Anne Davis, Esq. ,of the New York City Chapter of the National Multiple Sclerosis Society, last night. Anne is joining with a group of ERISA long term disability lawyers to try to persuade New York State to prohibit " discretionary clauses " in disability insurance policies and contracts. Discretionary clauses in ERISA disability income policies allow insurance companies to insulate unfair claim denials from proper judicial review. In a big win for consumers, New Jersey recently adopted rules banning discretionary clauses, despite fierce opposition from the powerful insurance industry. Hopefully, New York State Insurance Superintendent Eric Dinallo will do the same. This will go a long way in protecting the economic resources and dignity of those battling Multiple Sclerosis.
Posted on July 18, 2007 by Troy Rosasco
I was on vacation recently where the only newspaper in town was USA Today. While it is not on my normal daily reading list, it had a disturbing article on long term care insurance denials. This article reinforces the findings of a New York Times article last March detailing the abuses of long term care insurance companies like Conseco, John Hancock, Bankers Life and Penn Treaty. Quoting from the article, "delays, premium increases and denials of payment make the enormous investment in long-term care policies all but worthless". The article then goes on to relate some long term care insurance denial horror stories.
When Paula Johnson's husband was diagnosed with Alzheimer's disease, she thought the long-term care policies she and her husband bought would protect them from financial ruin. Unfortunately, in her time of need, the insurance company the insurance company threw up all the same road blocks attorneys frequently see in long term disability claims. "Having a diagnosis of Alzheimer's from the Mayo Clinic should be a slam-dunk, but still I fought and struggled and begged and pleaded and cried to get the claims paid", said Johnson. "It was if they were torturing me".
Bottom Line - as long term disability attorneys have known for some time, some insurance companies use their claims departments as profit centers. Who is more vulnerable than an elderly and infirm policyholder facing needless procedural road blocks. It is a sad truth that many die before the fight with the insurance company is over. Thankfully, a small cadre of consumer oriented LTD lawyers like myself are starting to pick up the long-term care insurance fight for angry policyholders across the country. As we see more egregious and unfair denials, we will report them here.
Posted on July 3, 2007 by Troy Rosasco
Congratulations to my friend and fellow long term disability attorney Eve-Lynn Gisonni on her significant victory at the New York State Court of Appeals in Benesowitz v. MetLife. This decision is a great victory for long term disability claimants who are denied benefits due to a "pre-existing condition clause" in their employer's LTD Summary Plan Description. Credit is also due to Eric Dinallo, Governor Spitzer's new Superintendent of Insurance, who supported Eve-Lynn's position in an Amicus brief to the Court.
In Benesowitz, the Court ruled that claimants who apply for long term disability benefits in part due to a preexisting condition which was present at the time disability coverage began only have to wait 12 months before they can collect disability benefits. Up until now, many disability insurance companies, including Unum, MetLife and Cigna , used preexisting condition clauses to unfairly deny claims forever. Now, the Court has ruled that claimants in these fairly common situations will have a 12 month "waiting or elimination period" before being able to collect benefits. For a 30 year old with a pre-existing history of cancer which reoccurs and causes permanent disability for the rest of her life, this will be an economic life saver if she is claiming long term disability benefits.
Posted on June 21, 2007 by Troy Rosasco
That's the rumor in the latest business press. Having just digested the giant Travelers Insurance, MetLife is apparently on the prowl for its next corporate meal, and Unum Group might be ripe for swallowing. But what impact would such a acquisition have on individuals claiming long term disability benefits from the "new undisputed disability insurance king"? Probably not much.
As it stands now, neither MetLife nor Unum Group are great claims payers. In the last month, I've had employees of these companies come to my office for representation because their own employers unfairly denied their ERISA disability claims. If this is how MetLife treats its own employees, can you imagine how you will be treated. These two titans are motivated primarily by shareholder profits, not policyholders interests. From a long term disability lawyer's perspective, it would be a perfect marriage in which both naysayers deserved each other. But then again, it might be a good stock?!
Posted on June 13, 2007 by Troy Rosasco
Patricia Kitchen of Newsday did a nice article on business professionals who blog in the cover story to the Money and Careers section of last Sunday's paper. My good friend and fellow attorney Diane Pfadenhauer, who writes the Strategic HR Lawyer Blog, was featured along with my blog on long term disability claims. We both have Kevin O'Keefe at Lexblog to thank for hosting and designing our blogs and keeping them easy to navigate for our readers.
The article stressed the roles our blogs play in providing useful information on specific topics to the public while also allowing us to express our professional "spin" on the issues. Of course, I have suffered some ribbing from fellow attorneys since publication - mostly along the lines of "what is a blog?" The print edition unmercifully had my mug shot front and center, and one good "friend" informed me that he stuck it on the refrigerator door right next to the plumber's magnet!
I have since spoken to Steve Levy, a professional recruiter who was also profiled in the article and discussed employment opportunities for individuals with disabilities. We will talk again. I haven't spoken to career strategy coach Deb Dib yet who was also profiled, but am sure we will have similar synergies. See you in the blogosphere!
Posted on June 6, 2007 by Troy Rosasco
I was reading the magazine section of my Sunday paper this weekend and ran across a great article on online support groups by Peter Waite, the founder of HealingWell.com, a website devoted to online discussion groups for individuals with chronic illnesses. I have always been a big fan of support groups for those with particular medical conditions, whether they be cancer, diabetes heart disease or some less common but equally disabling conditions. However, I have always been dubious of recommending specific online disease forums due to the proliferation of bad medical information and questionable "lurkers". Up until now, about the only Internet medical site I have recommended is MedlinePlus, sponsored by the National Institute of Health. MedlinePlus is the starting place for my medical research.
Mr. Waite makes an excellent suggestion that anyone considering participation in an online support group first check out who sponsors the site (is it a drug company that wants to sell you its latest multiple sclerosis medication?) and if the site is accredited by the Health on the Net Foundation. He also discussed proper online etiquette and the always sound mantra to check everything with your doctor.
My curiosity piqued, I got out of the recliner, sat down at my computer, and went to the HealingWell.com website. It is well organize and has a user friendly interface. More importantly, it has well attended discussion forums on diseases such as fibromyalgia, chronic pain, lupus, depression, arthritis, Crohn's Disease and ulcerative colitis, to name a few. For those of you who are fighting a Social Security Disability claim or ERISA long term disability claim, this helpful site may give you some much needed support in the interim.
Posted on May 29, 2007 by Troy Rosasco
I was recently interviewed by a reporter for AM New York in an
article on disablity insurance claims.
The article is a good overview of the reasons to have long term disability insurance and the potential problems that may arise when you make a long term disability claim. It also appeared in the always excellent
Disability Insurance Forums. Good reading!
Posted on May 18, 2007 by Troy Rosasco
Last week, the New York Daily News published a sad article about disability benefits and our client's 3 1/2 year struggle to obtain the Social Security Disability benefits she deserved entitled "Filing for Disability, but Finding Discouragement". As detailed in the article, our client was mentally retarded and could not read or write.
In mid-2003, she applied for Social Security Disability benefits. Unbelievably, her claim was denied about 6 months later. Our office filed an appeal called a "Request for a Hearing before an Administrative Law Judge" in the Queens Office of Disability Adjudication and Review. Our client eventually appeared for a hearing before an Administrative Law Judge after waiting an additional 12 months. At the hearing, the law judge called a special Social Security medical expert to testify. The medical expert testified that our client was disabled under Social Security regulations. End of story - right? No!
Despite the testimony of his own medical expert saying our mentally retarded client was disabled, the judge again denied the claim in a poorly written decision a few months later. This particular judge is known for horrible decisions. We then immediately appealed our client's case to the Social Security Appeals Council (a panel of reviewing judges) in Falls Church, Virginia. Finally, in January 2007 the Appeals Council fully reversed the original judge's decision and granted our client disability benefits, some 3 1/2 years after her initial application.
As the claimant's mother said in the article, "when we needed the system, it wasn't there for us". When the mentally retarded need retain disability attorneys to get the Social Security Disability benefits they deserve, you can only imagine the challenge the rest of you might have, especially in the New York City area.
Posted on May 8, 2007 by Troy Rosasco
Once again, Mark Harrington of Newsday continues to do a superb job of uncovering previously unreleased documents about the dangers still lurking in the soil and air surrounding the former Hicksville Sylvania nuclear fuel rod fabricating plant, now owned by Verizon. Yesterday, he published the fourth article in an ongoing series about the Hicksville nuclear site and its impact on thousands of workers. Harrington details the most recent March 2007 Army Corps of Engineers report about the proposed future cleanup of this "dirty" site contaminated with both radiological waste and chemicals such as TCE and PCE. Updating the health of my client, the article goes on:
Troy Rosasco, DePascale's Hauppauge-based attorney, said his client is preparing for surgery on May 17 to remove a tumor even as he recovers from the removal last month of half of the other lung. At the same time, he said, continued testing raises questions about assurances that the site was completely safe. "It tells me that the State Department of Health...is operating fast and loose with data the US Army Corps says is missing" Rosasco said.
Despite winning his case after a trial over two months ago, Gerard DePascale is still without any workers' compensation payments due to the frivolous appeal filed by his employer, Hudson News Group. All the while, every day another present or former employee who worked at this toxic "glow in the dark" work site calls my office to get on the list of potential future plaintiffs in a future major litigation to provide medical monitoring for all those exposed. Even if you are currently healthy, you may be entitled to future medical monitoring. If you are currently sick, you may have additional legal remedies. If you would like your name placed on the contact list for any future litigation or discuss any other potential claim, please call Troy Rosasco at 631-582-3700, ext. 123.
Posted on April 23, 2007 by Troy Rosasco
US Senator Charles Schumer announced in a Newsday article yesterday that treatment, medical monitoring and potential compensation are on the way for potentially thousands of workers who formerly worked atop the nuclear waste site owned by Verizon in Hicksville, New York. In addition to announcing the new benefits for workers, a frustrated but determined Senator Charles Schumer stated that "I will hold the Army Corps' of Engineers feet to the fire" and "the site should have been cleaned up yesterday", referring to his previous efforts in 2004 to achieve a full cleanup.
Shocked that their efforts in 2004 to secure a federal cleanup of the Hicksville, Long Island, New York nuclear waste site have not been completed to date, both Senator Charles Schumer and Congressman Pete King vowed to to cut through the bureaucracy and finger pointing. Both Schumer and King were reacting to a letter request for intervention from Troy Rosasco, the attorney for Gerard Depascale, who the New York Workers' Compensation Board recently found contracted a rare cancer while working for the Hudson News Group on this site and was awarded lifetime workers' compensation and medical benefits. In a previous Newsday artcle on Mr. Depascale, Mr. Rosasco compared the illnesses facing the Hicksville workers as similar to the ilnesses facing 9/11 workers who were exposed at Ground Zero. "Over the course of the next 10-20 years, I believe we are going to see more cases of cancer and other illnesses related to radiation at this site", said Rosasco.
This new aid promised by Senator Schumer will be especially welcome to those workers who were exposed to ionizing radiation and other toxins on the site and are now in fear of getting sick in the future. In addition, the Army Corp of Engineers promised to return to the site this May for more investigation. Turley, Redmond & Rosasco, LLP is compiling a list of workers who ever worked on this site and may have been exposed to radiation and other chemicals. Please call Troy Rosasco, Esq. at 631-582-3700, ext. 123 if you worked at this site and would like to be on the list for possible testing, treatment and/or compensation. We will keep you posted on further developments.
Posted on April 16, 2007 by Troy Rosasco
Shocking. Revolting. Sad. Tragedy. Anger. Way off the seemingly inconsequential topic of long term disability and social security disability claims today, but we feel compelled to offer our sympathies and prayers to all those impacted by the horrific shootings at Virginia Tech today. May God be with you all.
Posted on January 16, 2007 by Troy Rosasco
Welcome to the newly designed New York Disability Law Blog! As you will notice, I changed the official title of the blog from "The Disabled Worker Law Blog" to the more informational "New York Disability Law Blog". This is in keeping with the blog's purpose of providing useful information and insight regarding disability claims to fellow attorneys and the general public.
To this end, I am excited to announce the creation of the blog's "Disability Law Library" which will be continually added to and updated. I hope that this will eventually become the first place attorneys and claimant's turn to when researching disability claims and legal issues. Still in it's formative stages, the library will have sections on long term disability and ERISA claims, Social Security disability, New York workers' compensation, civil service disability pensions, scaffold /ladder /construction site lawsuits and a new section on the unfortunate expanding area of veterans' disability claims.
In addition, in 2007 we hope to do a better job collaborating with fellow bloggers such as Jonathan Ginsberg and his excellent Social Security Disability Radio Blog. Please feel free to comment about the new design and let me know how the New York Disability Law Blog can better serve your needs. Talk to you soon.
Posted on December 25, 2006 by Troy Rosasco
Well, my seven year old son didn't get "an official Red Ryder carbine-action, 200-shot, range-model air rifle with a compass in the stock" this Christmas, but he now has enough "weapons of mass destruction" to justify Dick Cheney's armed search of our property (I better duck!) My daughter is content with her yo-yo and Rubik's Cube. Chock it up to testosterone!
All of us at the New York Disability Lawyer Blog and Turley, Redmond & Rosasco wish you and your families a very Merry Christmas and Holiday Season! See you in the New Year!
Posted on November 11, 2006 by Troy Rosasco
On Monday, November 13th, I will be lecturing at the Suffolk County Bar Association's Plaintiff's Personal Injury Committee on the always confusing subject of Workers' Compensation Law Sec. 29, liens, consent and Kelly calculations. The Kelly calculation formula derives from the seminal New York Court of Appeals decision in Kelly v. State Insurance Fund, 60 NY2d 131 (1983). The Kelly case said that the workers' compensation carrier must pay it's equitable share of the claimant's litigation costs based upon their "total benefit" from the claimant's recovery. This "total benefit" includes both the amount of the lien they recoup and the present value of future workers' comp benefits they will not have to pay (credit/offset rights) due to the claimant's recovery. We will be handing out a Kelly Calculation Worksheets that personal injury lawyers can use and will practice on several hypothetical cases. Bring your calculators!
In addition, we will discuss the impact of the recent Appellate Division case of Burns v. Varriale, 2006 Slip Op. 6346 (3d Dept.) which states that Kelly may not apply in some permanent partial disability cases. My friend and fellow New York legal blogger Matt Lerner at the New York Civil Law Blog has an excellent synopsis of Burns, as does fellow workers' comp attorney Ray Seligman in the Albany Bar Association newsletter - so the issue is hot.
The seminar panel will include notable experts such as Leonard Tartamella, Esq. giving the Personal Injury attorney's perspective and Robert Manning, Esq. giving the workers' compensation defense counsel perspective. It starts at 6:00pm and is worth three continuing legal education credits. Call the Suffolk Academy of Law on Monday at (631) 234-5588 if you would like to sign up. There are still a few seats left.
Posted on November 6, 2006 by Troy Rosasco
Need another reason to vote for Eliot Spitzer for New York Governor tomorrow? This guy just keeps on working for the little guy (including one of my corporate executive clients receiving over $400,000 per year in disability payments from UnumProvident) and fighting greedy insurance companies right up to his presumptive landslide win on Election Day. This wasn't about getting votes (he doesn't need any more at this point) - it was about doing the right thing for disabled workers.
Late last week, Unum agreed to $15.5 million dollars in restitution to over charged policyholders and a $1.7 million dollar civil penalty. This settlement with UnumProvident, the nation's beleaguered yet largest long term disability claim insurer, comes on the heels of Spitzer's prior settlement with UnumProvident requiring them to re-access tens of thousands of previous unfair long term disability claim denials. Give Eliot Spitzer credit and your vote tommorrow - to date, he has done more to protect injured and disabled than any past NY Attorney General of recent memory. Now let's hope he protects New York workers' compensation claimants just as well in his new role as Governor!
Posted on October 10, 2006 by Troy Rosasco
I am humbled to have been recently elected by my colleagues to be their Second Circuit Court of Appeals representative on the NOSSCR Board of Directors. I look forward to seeing many of them at our upcoming national disability lawyer conference in Phoenix, Arizona and representing the interests of all Social Security Disability claimants. Remember - President Bush still wants to privatize Social Security in his last two years in office. We must prevent this ill-conceived idea.
For those of you who have never attended a NOSSCR conference, I strongly recommend that you do. Not only are the Continuing Legal Education seminars of the highest quality, but the opportunity to meet and learn from some of the sharpest disability attorneys in the US is a great asset. In fact, I am sure I would not have developed our ERISA and professional long term disability practice had it not been for attending an eye opening seminar given by California long term disability lawyer legend, Frank Darras, at a prior NOSSCR conference
Led by Executive Director Nancy Shor, NOSSCR is the largest disability lawyer association in the United States and is well known to our representatives in Washington, DC for protecting the rights of Social Security Disability claimants. As part of the NOSSCR leadership team, I am committed to preserving social security disability (SSD) and supplemental security income (SSI) benefits for all individuals with disability claims.
Posted on August 11, 2006 by Troy Rosasco
In April of this year, New York joined the growing list of states banning discretionary clauses in ERISA long term disability policies, much to the benefit of disabled workers. Unfortunately, the New York State Insurance Department recently rescinded it's prior advisory letter in favor of proceeding with formal rule making in the future. While it is clear that New York still feels that "discretionary clauses" are unfair to ERISA long term disability plan participants, this newest circular letter does subject current disability claimants to uncertainty in the near future.
New York Insurance Department Circular Letter # 8, dated 3/27/06, required long term disability insurance companies to remove "discretionary clauses" from disability income policies within 30 days they were "unjust, unfair, inequitable, misleading , deceptive or contrary to public policy". New Circular Letter # 14, dated 6/29/06, super cedes and withdraws Circular #8, and states that the Department will be drafting regulations which would "prohibit the use of discretionary clauses". In the interim, the Department "suggests" that long term disability insurers remove discretionary clauses from policies.
While the latest statement from the New York Insurance Department takes a little wind out of the initial announcement in March, it could lead to stronger permanent regulations which will have more impact in court. In addition, the formal rule making process allows for public comment. You can be sure the long term disability carriers will use this opportunity to water down the new regulations to their economic benefit. You can also be sure that Turley, Redmond & Rosasco will counter all such comments vigorously to protect disabled policyholders in their long term disability claims.
Posted on June 9, 2006 by Troy Rosasco
Arthritis cripples more people in the United States than almost any other chronic condition. Therefore, it is one of the most common disabilities the attorneys at Turley, Redmond & Rosasco see when it comes to processing long term disability claims and Social Security disability claims.
Arthritis is a broad category of disorders including degenerative arthritis,osteoarthritis, rheumatoid arthritis, and psoriatic arthritis. It also includes autoimmune disorders such as lupus, fibromyalgia, sclerodema, and mixed connective tissue disease. All involve severe pain and functional restrictions. When arthritis affects the hips, knees or ankles, obesity often times exacerbates the symptoms. When the symptoms become severe enough, sometimes total joint replacement surgery is necessary.
To win an arthritis Social Security disability or long term disability claim, the key is always to document how the client's pain and/or inflammation impacts on the ability to use hands repetitively, stand, walk or sit for long periods. One of our main jobs at Turley, Redmond & Rosasco is to work with the client's treating rheumatologist or orthopedist to document the severity of pain induced functional restrictions. When handled properly by a skilled disability lawyer, arthritis claims can be easily won and result in much needed disability benefits.
Posted on May 26, 2006 by Troy Rosasco
New York ERISA long term disability claimants just received a big assist from New York State Insurance Superintendent Howard Mills . Following the lead of California's Insurance Department, Superintendent Mills issued 2006 Circular Letter # 8 invalidating all "discretionary clauses" in existing group long term disability policies. All insurance companies must comply by May 31, 2006.
Insurance companies frequently used discretionary clauses to unfairly deny legitimate long term disability claims by claiming their policy gave them "discretion" to decide what is and is not a disability. Discretionary clauses also handcuffed federal court judges who reviewed the unfair denials. An often heard statement by Judges might be "if I were deciding this myself, I would find the claimant disabled. But since the policy grants the insurance company discretion to decide what is disabling, and their doctor says the claimant is not disabled, I cannot say their decision was ‚Äňarbitrary and capricious‚Äô.
Now - New York residents with ERISA group long term disability policies will have greater success challenging disability claim denials or terminations. Federal Judges will have far greater leeway in deciding who is disabled from their ‚Äňown occupation‚Äô or ‚Äňany occupation‚Äô. Essentially, the playing field for long term disability claims just got a lot fairer. Sure ‚Äě the insurance companies still have the big bucks to hire large law firms to fight your claim, but you just won a significant battle. Bottom Line ‚Äě Turley, Redmond & Rosasco will be fighting and winning more LTD claims in the future. Have a great Memorial Day weekend!
Posted on March 19, 2006 by Troy Rosasco
With all the talk of workers' compensation reform in New York lately, some of you may have thought that we forgot about the long term disability and social security disability claim side of our practice. Anything but!
On February 23th and 24th, I attended ACI’s Litigating Long Term Disability Claims conference in Coconut Grove, Florida. This is one of the best LTD claim lawyer conferences in the nation and all the "heavy hitter" plaintiff and defense attorneys in the in LTD business, from Frank Darras to Mark DeBofsky, were there. In fact, both Frank and Mark gave wonderful presentations regarding recent case law and claim filing strategies.
Given that a long term disability insurance carrier last week denied a new client who has end-stage real disease and is awaiting a kidney transplant, it looks like the good fight will continue for the foreseeable future.
Posted on January 12, 2006 by Troy Rosasco
Next Wednesday, 1/18/06, my friend and colleague Justin Frankel and I will be giving a Continuing Legal Education Seminar at the Nassau County Bar Association entitled "Winning Long Term Disability and Social Security Disability Claims". It is suitable for both current New York disability lawyers and those attorneys considering branching out into either long term disability or Social Security Disability law in Nassau or Long Island.
If you are an attorney and would like to learn more about long term disability law or Social Security disability law in New York (while earning your CLE credits), please call Barbara Kraut of the Nassau Academy of Law at 516-747-4464. Hope to see you there!
Posted on January 3, 2006 by Troy Rosasco
This past year has been a great experience for all of us at the Disabled Worker Law Blog. Hopefully, we have shared some useful information for the disability community regarding New York workers' compensation claims, Social Security Disability claims, and Long Term Disability claims. In addition to sharing helpful information, we have taken strong political positions to protect the rights and benefits of disabled workers, whether it be the Bush Social Security Privatization plan,the Pataki workers' compensation reform plan, or the UnumProvident long term disability settlements. Your continued readership and comments have been both encouraging and enlightening. We look forward to the continuation of our mutual conversation in the New Year.
Along the way, we have encountered many friends and fellow bloggers, such as the the always insightful New York Civil Law Blog and the simply outstanding Workers' Comp Insider. Their excellence keeps us striving to do better. Of course, none of this would have been possible without the support and encouragement of Kevin O'Keefe at Lexblog who is the preeminent authority on law firm blogs in the US. Thanks, Kev!
Finally, we would like to personally thank all our loyal readers. Since the Disabled Worker Law Blog was launched in March 2005, our readership statistics have shown steady growth, while maintaining a loyal group of regulars. We frequently receive inquiries from disability advocacy groups, disability support groups, unions, physician practices and the press, in addition to disabled individuals and their families. On behalf of all the attorneys at Turley, Redmond & Rosasco, we wish you all a happy and healthy New Year. We'll see you in the blogosphere!
Posted on December 27, 2005 by Troy Rosasco
One of our workers compensation and Social Security disability clients picked up her $500 check as a result of Turley, Redmond & Rosasco's First Annual Christmas Blessing on December 21, 2005 in our Shirley office. Our staff was overwhelmed by the volume of touching and heartfelt letters we received from many of our disabled clients. Almost every single letter requested help not for themselves, but for their young children on Christmas day. Our staff did their best to select the absolute neediest among our many deserving clients.
Finally, our staff selected a single mom with three children ranging from age 2 to 6. She had a 15 year solid work history as a Nurse's Aide until she hurt her back lifting a patient at work. She recently underwent back fusion surgery but the result is still in limbo as she continues to have chronic pain. She has no car and uses sporadic bus service on the east end of Long Island to go to doctor appointments and buy groceries. Her Social Security disability claim is still pending, and her only source of income is her paltry workers' compensation benefit.
When we called her on the phone to inform her of her blessing, she began to scream in joy so loudly that her children could be heard in the background asking what was the matter. We thank all our clients who participated in the Christmas Blessing and look forward to making it an annual tradition at Turley, Redmond & Rosasco. We wish you and your families a happy and healthy New Year!
Posted on December 16, 2005 by Troy Rosasco
We know that many of our New York clients with workers compensation, Social Security Disability or long term disability claims might have a less joyful holiday this year. For this reason, the attorneys at Turley, Redmond & Rosasco have instituted our First Annual Holiday Blessing. The law firm will donate $500.00 by December 20, 2005 to the neediest disabled New York client who is out of work and cannot afford presents for his/her children.
To be eligible for the Blessing, please write a short note to our Office Manager, Janou Mauro, by December 20th telling us how the $500 would make your Holiday more joyful. A committee of staff from our workers compensation, Social Security disability and long term disability departments will select the neediest client at 12 noon that day and contact the client to pick up their check that same day. Please call us if you have any questions.
The attorneys and staff of Turley, Redmond & Rosasco wish you all a Merry Christmas and Happy, Healthy Holiday Season. May next year be better than the last! In the words of Charles Dickens, "God Bless Us, Everyone!"
Posted on December 8, 2005 by Troy Rosasco
In one of her farewell decisions as a Supreme Court Justice, Sandra Day O'Connor ruled for a unanimous Supreme Court yesterday that the federal government can collect delinquent student loans by withholding a claimant's Social Security Disability benefits. The full decision in Lockhart v. United States is here. While legally sound, the practical effect on disability recipients does not seem one bit fair.
Let's take the following real world example: John works for 20 years as a GM factory worker and then gets laid off. All those 20 years he paid into Social Security for disability and retirement benefits. Trying to better himself and find a new career, he enrolls in college to become an insurance claims adjuster. He takes out $7,500 per year in student loans to pay for tuition and books. In his sophomore year, he has a major heart attack which forces him to withdraw from his courses and prevents him from working. Since he is not enrolled in study, his loans come due. Because he can't work due to his disability, he falls behind on his payments. Eventually, he files for Social Security Disability. While Social Security finds him qualified medically, they don't pay him anything because they first want to recoup his delinquent student loans. Because John has no income and no Social Security Disability benefits now, he is forced to go on welfare. What's wrong with this picture?
First, the government is forgetting that John already paid for his Social Security Disability benefits through payroll deductions during the 20 years he worked at GM. It's his money! Social Security Disability is not welfare! This money was entrusted to the Social Security Administration to protect John if he became disabled. It's like a forced savings account. How do they expect him to pay back his student loans if he cannot work? How do they expect him to live now? Poor John.
I'm all for going after student loan deadbeats if they are driving a Lexus and not paying their loans. Most of them won't get hurt by the Social Security offset until retirement age. However, I would hope Congress would carve out an exception for the disabled so they can get by today. It would be the right thing to do
Posted on December 1, 2005 by Troy Rosasco
I wouldn't! I think they both have major conflicts of interest. As the attached court decision Allsup v. Advantage 2000 shows here, I think Allsup and Advantage 2000 (A2K) Consultants are more interested in helping long term disability insurance companies, like UnumProvident, Cigna and MetLife, than they are in protecting the rights of Social Security Disability beneficiaries.
This is the way companies like Allsup and Advantage 2000 work: 1) You file for long term disability (LTD) through your employer's LTD carrier; 2) before the ink is dry on your LTD application, the LTD insurance company tries to solicit you to sign up with Allsup or Advantage 2000, at no financial cost to you, to help you apply for Social Security Disability. Sometimes Allsup will send you letters directly. I know - one of my LTD clients with Parkinson's Disease can't get Allsup to stop sending him annoying letters.
Why do long term disability insurance companies want you to use their handpicked Social Security Representative? A few reasons: First, most ERISA long term disability plans "offset" the benefits they pay by the amount you receive in Social Security Disability benefits. For example, if the LTD claim is supposed to pay you $3,000 per month, and you also win Social Security Disability that pays you $2,000.00 per month, the LTD insurance company now only has to pay you $1,000.00 per month. That's a whopper of a financial incentive.
And as the above case shows, they don't want you to even touch your Social Security money when you win! They want to electronically forward it to the LTD insurance company. Talk about you know what! You paid for your Social Security benefits, and they don't even want you even see it.
Even more disturbing is the relationship between Allsup (and their ilk) and the LTD insurance company. Remember - the Allsups of the world work first and foremost for the insurance company, not you. They are allowed to share any secrets, confidences and/or private medical information they obtain directly in the Social Security Disability claim with the LTD insurance company. I have seen such info used later to deny the long term disability claim. Unlike attorneys, Allsup has no ethical obligation to put your interests (and secrets) first. See here an Allsup brochure that seems to play on their trusting relationship with a client to the advantage of the LTD insurer. If you read it closely, this says it all.
To be fair to Allsup and other non attorney representatives like them, some law firms provide the same service to long term disability insurance companies. In my mind, this is even worse than Allsup's practices since an lawyer should know better. Allsup is just trying to make a buck from the insurance company.
Bottom Line - if you have a long term disability claim and need to file for Social Security disability, select an independent attorney with no relationship to any long term disability insurance companies. Most times your independent attorney can negotiate with the LTD insurance company so that the attorney's fee will be paid by the insurance company.
Thanks to the excellent Brininger Law Firm blog for publishing this info on the web.
Posted on November 23, 2005 by Troy Rosasco
Turley, Redmond & Rosasco wishes all our Long Term Disability, Social Security Disability and Workers' Compensation clients (along with fellow lawyers in the disability bar) a blessed Thanksgiving! See you on Monday.
Posted on November 16, 2005 by Troy Rosasco
Want to know how Workers' Comp, Social Security Disability and Long Term Disability claims inter-relate? I will be lecturing next week on 11/22/05 in Garden City at a day long seminar entitled "Advanced Workers' Compensation in New York" My topic will be "Coordinating Workers' Compensation, Social Security Disability and Long Term Disability Claims". In the past year, I have seen an increasing number of clients who wish to have all their disability related claims handled by one law firm. There are specific strategies that can be followed in order to protect a claimant's entitlement to all three benefits at the same time.
For those attorneys and workers' compensation claims professionals who have not yet signed up for next week's seminar, you can still do so by contacting Lorman Educational Services toll free at 1-866-352-9539 or at www.lorman.com. So far, we have over 30 attendees signed up, so it should be a lively and informative disability seminar. Hope to see you there.
Posted on October 27, 2005 by Troy Rosasco
On October 16, 2005, my partner Chris Redmond rode in the New York City Multiple Sclerosis Association's MS Bike Tour and his group of riders raised over $20,000 for MS research! Congratulations to Chris and his team for raising an astounding amount for this great organization. The event raised over a Million dollars in total! By raising money like this, we get that much closer to finding a cure for multiple sclerosis. Although I have found our multiple sclerosis clients to be some of the nicest and most courageous people we have ever met, we would be glad to never see another MS Social Security Disability or Long Term Disability claim again.
On a different front, last Thursday I had the pleasure of attending the Long Island MS Association Chapter's 8th Annual Research Dinner. The speakers were Malcom Gottesman, MD, Director of the MS Treatment Center of Winthrop University Hospital and Susan Goelz, PhD of Biogen. Bottom Line - in addition to Multiple Sclerosis drugs like Avonex, Copaxone, Rebif and Betaseron, pharmaceutical giant Novartis is currently in Phase Two trials with a promising new drug currently labeled "FTY720". This is an oral drug which can reduce MS lesions. Finally, the drug Tysabri may soon be coming back on the American market after it was withdrawn over fears it might cause PML. All in all, it was a fascinating night filled with hope that we will conquer Multiple Sclerosis sooner rather than later.
Posted on October 5, 2005 by Troy Rosasco
UnumProvident, the nation's largest long term disability insurance company, has been ordered to pay an $8 million dollar fine and change the way it evaluates long term disability claims in California in a settlement announced today. On the heels of New York Attorney General Eliot Spitzer's wide ranging Unum settlement last year and a recent stinging LA Times article highlighting the problems in the entire disability insurance policy industry, UnumProvident has suffered another embarrassing blow. Now, residents of California have the best protections in the US against unscrupulous disability insurance company practices. No more "pizza parties" for employees who deny the most disability claims. Employees will now have a fighting chance to get the disability benefits they paid for and desperately need.
Hopefully, the California reforms will spread to all 50 states. If not, Congress should step in to reform ERISA, the federal statute that regulates group long term disability claims. To Unum's credit, based upon the experiences of my clients, UnumProvident does seem to have cleaned up its act recently. This settlement insures that such reforms shall continue. Now all we need is to have companies like MetLife, Cigna, and Disability Management Services jump on the reform bandwagon. Don't hold your breath!
Posted on September 8, 2005 by Troy Rosasco
How ironic? As reported in a great LA Times article, a woman who made $250,000 a year selling long term disability policies couldn't collect herself when she put in a claim with UnumProvident due to her multiple sclerosis! Remember - this is a woman who made the disability insurance companies tons of money by selling disability policies. You can't fake MS- its a progressive neurological disease documented by lesions on brain MRI's. If she has to wage a three year legal fight to get her benefits, what chance do you have? As I always tell my clients - better to plan and seek legal advice before you file your claim.
Thanks to John Wood and his excellent new ERISA long term disability law blog for bringing this article to our attention. The article is mandatory reading for anyone who wants the real scoop on UnumProvident and ERISA long term disability claims.
Posted on August 30, 2005 by Troy Rosasco
My partner, and TRR's East End Managing Attorney, Chris Redmond will will be riding in New York City's 21st Annual MS Bike Tour on October 16, 2005 to raise funds for medical research to fight Multiple Sclerosis. Besides representing Multiple Sclerosis clients in Social Security disability claims throughout the years, Turley, Redmond & Rosasco has a personal interest in fighting multiple sclerosis as it has touched someone very close to us. As a result, earlier this year a number of our firm's employees participated in the Long Island MS Walk and raised a substantial sum for this worthy cause. If you would like to sponsor Chris' Bike Tour to fight Multiple Sclerosis, please click here for his personal MS Web page and make a contribution. Thank you!
Posted on August 14, 2005 by Troy Rosasco
Thought President Bush’s Social Security Privatization Plan was dead? Think again! In the wake of significant Congressional victories such as the new energy bill and CAFTA, the President’s handlers are using Social Security’s 70th birthday to take another stab at private accounts. We can expect a new push this fall assuming issues like Iraq and Karl Rove don’t distract the President.
On Social Security’s 70th birthday today, we should be celebrating the spectacular success of this insurance program. Prior to its enactment in 1935, retirees and the disabled frequently lived in poverty. Social Security continues to be an important safety net for the least fortunate in society. It is not another 401k account to play the stock market. Wouldn’t it be nice to know you had this safety net if you live to be 90 and your nest egg has evaporated? As a Social Security lawyer, I think so.
Democrats and Republicans agree that private accounts do not solve the Social Security solvency problem. It’s a simple fact that people are living longer and Social Security will have to pay out more in the future. However, this fact leads me to conclude that we need the security of the Social Security program more than ever. Regardless, of your position on Social Security private accounts, we should all be grateful that President Franklin Delano Roosevelt’s foresight 70 years ago created a Social Security program that is the envy of the rest of the world. When I interview immigrant clients for Social Security Disability claims, they are overwhelmingly thankful that they moved to a country that does not let its citizens fall between the cracks. Let’s make sure we don’t tear down the security of Social Security by foisting private accounts on working class Americans. Happy Birthday, and many more, to Social Security!
Posted on July 22, 2005 by Troy Rosasco
The Long Island, New York Chapter of the National Multiple Sclerosis Society has invited me to speak with their members on Thursday, August 4, 2005 on Social Security and Long Term Disability claims as part of their "Attorney One-on One" program. Located in Hauppauge, Suffolk County, this is a fantastic organization which really provides some much needed services for its members.
Over the past 15 years, I've handled over 60 multiple sclerosis disability claims before Social Security or long term disability insurance carriers, such as UNUMProvident. Although one might think that a diagnosis of a progressive illness like multiple sclerosis was all a claimant needed to win a disability claim, in fact both Social Security and long term disability carriers (including Disability Management Services - DMS) give MS claimants a particularly hard time in approving claims. However, I have found that by educating the claimant's treating neurologist about the legal standard for disability, we can win these claims in almost 100% of the cases. Winning the disability claim often reduces the claimant's stress, which then results in less serious exacerbations. I look forward to sharing some helpful tips with the membership.
Posted on June 14, 2005 by Troy Rosasco
Had a great time last Thursday night at the New York Social Security Bar Dinner. Along with five other attorneys and staff from my office, we got a chance to socialize and laugh with old friends and colleagues, including Richard Morris and Vic Fusco. Judge Emanuel Poverstein from the Long Island Office of Hearings & Appeals was presented with the Lester Rosen Memorial Award - the highest honor an Administrative Law Judge in the New York region can attain. In his acceptance speech, Judge Poverstein humbly described the role of a Social Security Judge: "Helping the most vulnerable in our society - the disabled". Sounds like he was a fan of the late Senator Hubert H. Humphrey.
When I started practicing Social Security Law in 1990, both Judges Poverstein and Rosen sat together in the old Hempstead Hearing Office. Prior to his untimely death, I was fortunate to have learned the law from Judge Rosen, who was then widely considered the Dean of the New York Social Security judiciary. Judge Poverstein had just transfered from his prior assignment in Arizona and he became a "Rosen-like" Judge - compassionate and scholarly with a dry sense of humor. One of his particular strengths is evaluating mental disability claims. If you have a client with a mental disability, you hope Judge Poverstein is assigned to your case. Like former Supreme Court Justice Potter Stewart, 'he knows it when he sees it'.
Posted on June 6, 2005 by Troy Rosasco
Here is New York Attorney General Eliot Spitzer's complaint alleging fraud against mega workers compensation insurance carrier AIG and its former CEO, Hank Greenberg. Thanks to Matthew Lerner and his New York Civil Law Blog for bringing it to my attention.
If the allegations are to be believed, it appears that Greenberg was a rogue CEO who would not take the legal advice of his own lawyers when they told him that AIG was defrauding the New York Workers Compensation system. If you read the complaint in detail, look at factual allegation #93. It alleges that AIG had secret "side agreements" with "customers" to disguise workers compensation premiums as auto premiums. Does this mean employers were part of a conspiracy to defraud the workers compensation system to lower their insurance rates? I wonder what the New York State Business Council has to say about this. The silence is deafening.
I've settled many claims with AIG over the years. I have always found their workers compensation adjusters tough but fair. Its a shame Greenberg has given the company a whopper of a black eye.
Posted on March 31, 2005 by Troy Rosasco
You need life saving cancer treatment, but your HMO will not pay. What are your rights? Can you enforce them in time? I recently went to a great seminar on this topic at the Nassau County Bar Association given by my good friend, Susan Slavin. Susan was one of the pioneers of breast cancer litigation in the early 1990's, and continues today as a leading ERISA and disability rights attorney.
So what do you do when you get an HMO denial? In most states, including New York, you have a right to an External Appeal by an Independent Panel not affiliated with the health plan.. These appeals usually deal with the issues of "medical necessity", "experimental/investigational treatment" and/or "clinical trials". In New York, you have to complete the Health Plan's first level of internal appeal prior to requesting an external appeal. Then you have only 45 days to request the external appeal - and this is a strict deadline. There is also a procedure for Expedited Appeals in emergency cases. In cases involving other issues such as out-of-network expertise, you may have to file a separate ERISA appeal.
The Good News - statistics as of March 11, 2005 show that patients win almost 50% of external appeals. Even better, the appeal process is set up so that most patients don't need a lawyer. An excellent resource is the New York Attorney General's Health Care Hotline: 1-800-400-8882. So when your "HMO Says No", make sure you investigate your appeal rights. You might just win!
Posted on March 28, 2005 by Troy Rosasco
Are you able to work after a diagnosis and treatment for cancer? Is this a better measure of treatment success for working age people? Most cancer survivors are able to stay on the job, according to a new study found in the current issue of the journal Cancer and reported by Reuters.
The nation's largest long term disability insurance company, UnumProvident, recently reported that cancer is the leading cause of long term disability claims in the United States. According to the new study, survivors of early detectable cancers ( breast, prostate, skin, thyroid and uterus) had the lowest risk of having to quit work. Survivors of other cancers, such as brain cancer, lymphoma and leukemia, had the highest rates of work disability.
The challenge for cancer specialists is to identify and help their patients with employment problems. Doctors need to " reassure employers that most cancer survivors are going to live a long time and will be just as productive as anyone else". One of my favorite organizations is New York based CancerCare. They helped my good friend Tim successfully battle Hodgkin's Disease as a young man. After beating Hodgkin's, he went on to graduate with me from St. John's Law School and became an Assistant District Attorney in Nassau County. Cancer didn't keep him down - it just made him tougher. Just ask the criminals he sent to jail!
